92 A.D.2d 1072 | N.Y. App. Div. | 1983
Lead Opinion
— Appeal from a judgment of the Supreme Court in favor of plaintiffs, entered January 4,1982 in Albany County, upon a verdict rendered at Trial Term (Conway, J.). On April 29, 1973, a tent that had been sold by defendant in 1966 caught fire in the yard where it had been set up for the use and enjoyment of the neighborhood children. Alone in the tent when the fire started, Bobbie Jo Rush, a little girl then aged five, sustained third degree burns over 95% of her body, resulting in her death 15 days later. Her older sister, Donna Rush, a plaintiff herein, entered the tent in an attempt to rescue Bobbie Jo and suffered second and third degree burns over approximately 42% of her body, resulting in long and painful periods of hospitalization and treatment, skin grafting, debridement, permanently disfiguring scars and excruciating pain and suffering. The cause of the fire was never definitely determined. Opinions ranged from the improper use of a hibachi that was said to have been used inside for cooking and warming purposes, to the discovery of lighter fluid cans in the area after the fire. In any event, plaintiffs did not attempt to prove the cause of the fire but relied in theory on the failure of defendant to treat the tent with any kind of fire retardancy, knowing it would be used and occupied by persons for living and recreational purposes. After a trial, a jury awarded $300,000 to plaintiff Lloyd T. Rush, as administrator of the estate of Bobbie Jo, and $4,000,000 to Donna, who is now sui juris, as well as $12,265.35 for medical expenses incurred on behalf of both girls. There is no argument concerning the award for medical expenses. The excessiveness of the awards of $4,000,000 and $300,000 is the principal reason for reversal raised by defendant on this appeal. We hold that the award of $300,000 made to plaintiffs in the conscious pain and suffering action brought on behalf of Bobbie Jo is not excessive and should be sustained. In our opinion, such an award is not disproportionate to the community and judicial consensus of prior cases (see Senko v Fonda, 53 AD2d 638, 639) or shocking to the conscience of the court (Petosa v City of New York, 63 AD2d 1016, 1016-1017). Nor is there indication that passion, partiality, prejudice or some other improper motive led the jury astray (Jennings v Van Schaick, 13 Daly 7, 8-9) in awarding such amount on behalf of a five-year-old girl who received third degree burns over almost her entire body which caused her death 15 days later. Accordingly, the verdict of $300,000 to plaintiffs on behalf of Bobbie Jo should be sustained. As to the $4,000,000 award to Donna, however, we are of the view that it is excessive, and that the remarks of plaintiffs’ counsel in his summation contributed to the excessiveness as discussed ante. Conceding and considering the nature and extent of the injuries received by Donna, the terrible pain and suffering, .past, present and future, which attends those injuries, the hospitalization and treatments necessitated by such injuries, their permanency, their
Concurrence Opinion
concurs in part and dissents in part in the following memorandum. Sweeney, J. (concurring in part and dissenting in part). I regret that I am unable to fully agree with the result reached by the majority. While my disagreement is a narrow one, it is, I believe, significant, necessitating a brief explanation. Where, as here, the court is to sustain the verdict on the issues of liability but concludes that the verdict is excessive and recommends a 62% reduction in the damages, I am of the view that the better procedure is to remand for retrial on the question of damages. To adopt the majority’s method unfairly deprives plaintiff Donna Rush of her entitlement to a jury assessment of damages.
